Greens seek records on government contact with energy industry on fracking

Published 11:30 pm, Tuesday, September 18, 2012

ALBANY — An environmental group has taken the extreme step of going to court to force a look into whether the Cuomo administration is improperly withholding public records concerning natural gas drilling.

The suit, filed in Albany County state Supreme Court, claims the DEC and Cuomo's executive chamber provided only a fraction of the records it requested. The nonprofit asked for materials that would disclose government communications with the energy industry about the state's deliberations on planning for the controversial method of drilling for natural gas known as fracking.

The Working Group, which advocates more study of the hydraulic fracturing process of extracting gas from the vast Marcellus Shale deposits in New York, received 282 records in response to its March requests to the executive chamber and DEC. It claims there were obvious gaps and missing attachments in the release of material.

"I'm not aware of any response that had this many clear holes in my time at EWG," said Thomas Cluderay, the assistant general counsel to the group. He said the group is an avid user of right-to-know laws nationwide, and was stunned the state did not provide more documents after it appealed the initial response.

The lawsuit, he said, "was the next logical step ... as we try to make this process as transparent as possible."

The administration honored the letter and spirit of the law, said Richard Azzopardi, Cuomo's spokesman. "We are confident this will be crystal-clear with any court," he said.

Also Tuesday, DEC spokeswoman Lisa King said the agency had "just received documents filed by the Environmental Working Group. We believe we have fully complied with the state's FOIL laws."

EWG's position is the state, lawmakers and regulatory agencies need to learn more about the risks of hydrofracking and how to manage them to protect water and public health. It suspects that the state may have given drilling companies preferential treatment by providing them exclusive access to the specific language of the proposed regulations and permits.

The group sought records to see if such inside access was granted or if the energy industry was seeking to privately influence state government.

In its suit, the group said transparency "should not be thwarted by shrouding it with the cloak of secrecy."

"Any information that was communicated to DEC or the governor by the oil and gas industry, or by DEC or the governor to the oil and gas industry, must be made available to the public to enable greater understanding and participation by the public," the suit said, adding that it is "simply inconceivable" the records provided are complete.

The records shared with the group in April showed that in 2011 DEC gave natural gas drilling industry representatives access to draft regulations for hydrofracking as early as six weeks before they were made public, the suit said. "This access gave drilling interests an exclusive opportunity to influence the regulations behind the scenes," the suit said.

In June, EWG released a series of communications between DEC officials and an attorney for the drilling industry. At that time, DEC spokeswoman Emily DeSantis said the advance sharing of information was done to comply with the state Administrative Procedures Act, which she said required DEC to "assess the impacts of the regulatory action on the regulated entity."

The suit said that some records that showed up in the DEC response should have been part of the executive chamber response, but were not.

Robert J. Freeman, executive director of the Committee on Open Government, said such a suit is rare. The DEC gets 15,000 FOIL requests annually, he said, and few result in litigation. He added agencies must retain records longer than the governor's office, which can use its discretion on what to preserve or discard.